Jumping Backward to Poppleton again: Why ‘Pinchbeck v. Craggy Island Ltd (2012) [2012] All ER (D) 121 (Mar)’ may have been wrongly decided

While the case itself is unreported except in the All England Reporter, a number of newspapers carry the story: http://www.dailymail.co.uk/news/article-2115749/Craggy-island-leap-Louise-Pinchbeck-leapt-wall-hurt-ankle-100k-payout.html

The Claimant (Louise Pinchbeck) successfully brought a negligence claim against Craggy Island Ltd (an indoor rock-climbing centre) for injuries sustained during a bank team-building day organised by her employer in March 2008.

While the claimant had not had much experience rock-climbing, she had spent two hours that morning being closely supervised by two instructors top-roping on a high (40ft) wall with safety harnesses. The injury occurred when she was bouldering without any harnesses on a low (4m) wall and twisted her ankle when she jumped off onto the matting suffering compound ankle fractures.

Although an attempt was made by the defendants to suggest that P’s apology for making a fuss amounted to an admission of guilt, the Court held that this apology should only be taken as an expression of embarrassment and the case proceeded to trial.

While an instructor was supervising the low wall, the claimant argued that no formal instruction for the low wall was given to her other than not to have more than two people on the wall at any one time and she felt that the bouldering wall was almost like a ‘play session’ to cool down. The  defendant disputed this allegation and suggested that the claimant received a full safety briefing, however the court held that on the balance of probabilities, the claimant had not been given any clear instructions on how to descend from the wall, and that no clear prohibition was given not to jump.

The Court further held that the defendant had assumed responsibility for the claimant by providing instructors and that:

“the defendant had known that the claimant had, to that point, only climbed upwards that day and had therefore known, or ought to have known that she was at a disadvantage on the low wall. By not instructing her not to jump down from the wall, the defendant had failed to discharge its duty of care to the claimant.”

The Court also held that the instructor should have:

  • Been aware that there had been previous injuries sustained historically from other climbers
  • observed that the people P was climbing with had also jumped from the wall, prior to P’s injury

This seems a crazy counsel of perfection and one has to wonder what has happened to the doctrine of inherent risk, or to the application of s1 of the Compensation Act? Indeed, while the case digest summary shows the Court was cited Poppleton, they also seem to have disregarded the CA judgment in favour of the earlier (now overruled) High Court decision! Jeremy Howe’s digest summary (in his report of the case for the All England Reporter) suggests that the Court held that the risk of this injury could and should have been prevented by proper instruction, and that this breach of duty made the case unsuitable for an application of the volenti non fit injuria principle, although the claimant should be held 1/3 contributory negligent.

While this analysis is indeed legally correct, it presupposes that there had been a breach of duty. If this is true, possibly the Court was swayed by what it saw as a culpable failure of the defendants that needed punishment, rather than any general duty owed to climbers / boulderers. Indeed without this explanation, it seems difficult to reconcile with the recent CA rugby case of Sutton v. Syston where a breach of duty by the club (to perform a pitch inspection) did not ultimately cause the accident.

It may be worth considering whether had the defendants not ‘assumed responsibility’ by providing an instructor whether liability would have been imposed? To the best of my knowledge, there is no formal qualification for a UK bouldering instructor to hold (unlike the Single-pitch award for top-roping). Given this, did the defendants actually owe the claimant a duty to provide an instructor, or to remind them that jumping from a wall onto mats was dangerous? Indeed, hadn’t we already established both this lack of a duty and the fact that gravity hurts in Poppleton?

If this is indeed an accurate reflection of the case, the sooner it can be appealed the better, to leave it as it is would indeed be a backward jump.

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About Kris

Senior Lecturer in Law, Staffordshire University; British Gymnastics Senior Coach / Assessor / Tutor

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5 Comments on “Jumping Backward to Poppleton again: Why ‘Pinchbeck v. Craggy Island Ltd (2012) [2012] All ER (D) 121 (Mar)’ may have been wrongly decided”

  1. Paul Jones Says:

    This is a disgrace, the claimant sounds likely to receive £100,000 for jumping off a wall from 5ft up. There is lots of legal terminology that I’m sure claimant has used to justify her case but what about common sense?

    She should be ashamed and this whole case should be thrown out!

    Reply

  2. Sloper Says:

    Perhaps the author might have benefited from reading Poppleton and the first instance decision in the Pinchbeck matter.

    Pinchbeck made it clear that the case was noty about Volenti.

    The basis of responsibility was not on the basis of the provision of instructors, a basic knowledge of Occupiers Liability & etc tells otherwise.

    In Poppleton the claimant was injured following taking a foolish decision to attempt a backwards somersault from the bar at the top of the wall, on appeal it was held that as this was not an authorised act or wihtin the reasonable foresight of the management of the wall it would inappropriate to impose liability and the volenti principles applied.

    In the Pinchbeck matter the act was one which the wall knew had a risk of injury, that the act was contrary to good practice and that a large number of users were using the facility contrary to the accepted good practice and otherwise.

    Similarly I am unable to see the relevance of Sutton, this was a case turning on wholly different circumstances and a wholly different allegation of breach of duty. To compare the Sutton & Pinchbeck matters is beyond my comprehension.

    It is on the basis that the Court properly declined to follow Poppleton; that two claims involve injuries at climbing walls does not mean that there is a sufficient nexus to require lower Courts to follow the same; were this not so then we could avoid law libraries and simply rely on google and wikipedia.

    It is good practice for indoor bouldering walls to advise that climbers should not jump from the top of a wall and should climb down and it is also good pracice to allow for easier routes (problems) to be proximate to harder routes to allow climbers to climb down.

    To require walls to exercise proper risk management and take risk seriously (and keep proper evidence of the same) is not a counsel of perfection rather what should be the basic standard of competence.

    As to whether the decision would have been different had the facts been different; well yes, absolutely, cases do turn on the facts.

    There are no merits to seeking an appeal and indeed, from memory, i do not think counsel sought leave to appeal.

    Your first clause of your final sentence is in the form of a quesiton and the answer to the question is, no. Your article is not an accurate statement of the facts, of the law of England & Wales or the practices in the climbing wall industry.

    I am a climber of c.30 years experience, a non practising Barrister with detailed knowledge of climbing walls.

    Reply

    • Kris Says:

      Sloper,

      many thanks for your detailed reply. Unfortunately i’m not a climber and I dont have the experience that you do of climbing walls although I have climbed and bouldered. I also like a good debate but lets also keep it civil….

      I agree with most of the comments re: Poppleton, but actually the Court of Appeal did hear evidence that the centre in question could have had better management and risk assessment in place (much like Pinchbeck) but the claimant was still held to be at fault.

      I fail to see what was not an accurate statement of the facts. We disagree over what should be the best interpretation of the facts, but that does not mean that the article is not an accurate summary of the current law. It is only the last two commentary paragraphs that are more subjective and just because you dont agree with them doesnt mean that they are not valid questions or points. Poppleton as Court of Appeal has precedent value over the High Court which is the point that I was trying to make.

      Do I think that the Climbing wall owed a duty of care to the claimant. Absolutely. You also threw in Occupiers Liability. Practically, it makes very little real difference whether the case is occupiers liability, negligence or health and safety law, the duty of care is still broadly the same, keep the claimant reasonably safe. Craggy Island owed the claimant a duty of care, no arguments there from me.

      That said there are differences when we consider what was the extent of that duty.

      Sutton was the most recent case to bring up the Compensation Act 2006, s1 which suggests that consideration needs to be taken of the effects that litigation might have on the activity in question: http://www.legislation.gov.uk/ukpga/2006/29/section/1
      the slippery slope argument really comes down to the extent of the duty placed on instructors and climbing facilities to tell their students about the risks of the activity. To me, as a lay person, it is a fairly obvious risk that gravity hurts. Open and obvious risks were a complete defence in Tomlinson (Occ Liab) and Poppleton (where the risk is obvious and inherent, there is no duty to warn). To keep going down this route would lead to all sorts of counsels of perfection, apparently ice-skating can be slippery! :-)

      The way I see it is that there are three fundamental questions: whether the activity of bouldering that the claimant was engaged in was fully ‘supervised’ by the instructor (was there an assumption of responsibility) or was it her responsibility to go at her own pace and safety? If the latter, then I would argue there should be a much greater consideration of inherent risk and she should lose, notwithstanding that Craggy Island’s risk management procedures were criticised.

      Secondly what was the industry standard (the reasonable person)? Good practice can be one of those abstract concepts open to factual debate. I agree that walls should exercise robust risk management and I take your point about basic standards of competence as opposed to counsels of perfection, but my concern is whether this effectively creates an overly paternalistic approach.

      Finally, did the other climbers and previous casualties understand that jumping down was prohibited? If they did, and continued to do so, then the centre’s breach (to give warning) was not actually the causative factor, indeed that was another key point from Poppleton. If though the breach was more paternalistic (to physically prevent climbers from jumping by providing supervision) then yes you are correct that the wall may have been overly busy, and the instructors either too timid, incapable, or too distracted to ensure the rules were followed, in which case by assuming responsibility for the activity the centre should be liable – Fowles.

      K.

      Reply

  3. Sloper Says:

    For the usual premises of precedent apply there needs to be a sufficient factual and or legal nexus, in the matter at hand that was lacking for the reasons below:-

    1. In Poppleton, P was an unsupervised climber who had been through the process to allow him to climb unsupervised; further his act was grossly outside the normal or expect use of the facility. In Pinchbeck P was on a team building day in the course of her employment, had not (as I understand it|) been through the process which would have allowed her to climb unsupervised anthe act was within the usualpractice of climbers at the wall plus of course she was under the supervision oof the wall’s staff.

    2. The arguments advanced in Poppleton both at first instance and on appeal do not have any weight against the ratio of the decision in that the wall simply did not owe a duty of care where the act givign rise to the injury was not reasonably foreseeable.

    3. in Pinchbeckthere was no suggestion as to whether or not there was a duty owed; or volenti applied.

    4. In terms of the pubic polic, the 2006 Act I can see how that might have been pleaded in poppleton along with the comments in the House during the passage of the Bill, however the question in Pinchbeck was not about a novel situation rather one that is played out in walls up and down the country on a regular basis.

    I see from your comments you speak from a lay perspective; is this a lay perspective as in absent legal qualification or law as in a lack of experience in climbing?

    Whether the Courts are taking an overly paternalistic approach is another matter; whether public policy should narrow the extent of the duty of care in inherently risky activities another: what is clear in this matter is that the Court in Pinchbeck did not fail to properly follow Poppleton, Sutton is not relevant and the 2006 Act was, e. p. f. not considered to have been sufficiently applicable to have been pleaded by the defence in Pinchbeck.

    Climbing is an inherently dangerous activity and the risks are well known; as such the failure to take reasonable steps to mitigate those risks and ensure that users have sufficient knowledge of the same so as to take informed consent is not a new burden.

    This was a case that turned narrowly on the facts and the paucity of evidence that the defendant was able to advance and it is for those reasons that the Court found for the claimant with an apportionment of liability.

    With the greatest respect your article is flawed from the outset.

    Reply

  4. Kris Says:

    Sloper,

    As I said before, let’s try and keep the debate about the issues rather than us. For the record my Bio is freely downloadable from the university website and I head up the sports law team there. While I have only little climbing and bouldering experience, my work in the area of assumption of risk is cited widely in the leading text books.

    To just correct a few things from your previous post, actually, Poppeton was an inexperienced climber who had not undergone any induction or training at the centre. The judgment states that he had not been shown any rules, guidelines, participation statements or explanations of the risks. All he had done was leap off the wall (as other climbers at the centre had also done). Indeed the experts in the case suggested that this was a recognised climbing manoeuvre, although one only suitable for experts to perform. It was not therefore unforeseeable or grossly outside the expert use of the facility. No debate was made about the normal use although evidence at trial did suggest people did jump off the wall onto the matting. The Court also suggested that the centre had a number of shortcomings that fell below recognised good practice (much like Pinchbeck).

    Agreed that Pinchbeck was on a team-building day and was under the supervision of the wall staff. Indeed, there is plenty of recent cases on the liability of team-building hazardous activities (Corporate Leisure v. Uren / Reynolds v. Strutt) etc. My argument and one that was made in the both the Poppleton High Court and Court of Appeal is that the mechanism and nature of an ankle injury (as the Claimant has suffered in Pinchbeck) was foreseeable. One of the material facts in Poppleton was that the spinal injury was not foreseeable although the jump (which led to the mid-air somersault when he missed) was foreseeable. The Court did however expressly state that this foreseeability was not imposing a duty on the centre, but rather a duty on the climber themselves to guard against the obvious risk. I can see that you disagree with this in policy terms, but this was the ratio in Poppleton.

    While there was no subjective consideration of the risks / consent (volenti) and the judge expressly stated that this doctrine would be inappropriate in Pinchbeck, there should have been an objective consideration of the risks / consent (inherent risk) which could lead to effectively the same result. No breach of duty.
    Actually the 2006 Compensation Act does not only just apply to novel situations but rather all activities that could evidence a detriment from increased regulation. As such it could have applied here if the defence had raised it.

    Now to move the debate onto more neutral terms, my question from the original article is this. Given that Lord Justice May stated in Poppleton:”there being inherent and obvious risks in the activity which Mr Poppleton was voluntarily undertaking, the law did not in my view require the appellants to prevent him from undertaking it, nor to train him or supervise him while he did it, or see that others did so…..it makes no difference to this analysis that the appellants charged Mr Poppleton to use the climbing wall, nor that the rules which they displayed could have been more prominent.” [20]

    I accept there is one key distinguishing feature in Pinchbeck – that there was some supervision offered here which creates an assumption of responsibility and therefore a duty of care, but my point remains, I am not convinced that the centre acted unreasonably given the inherent risks of the sport, the forseeable nature of the injury and the consenting adult nature of the participant, notwithstanding there may have been shortcomings by the Centre. What would you consider to be the minimum standards of safe practice and should walls impose training on everyone (whether induction or continuous)?

    Reply

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